A (Rare) Informed Editorial on Indian Gaming

An editorial in Saturday’s St. Petersburg Times offers a well-informed perspective on the current stand-off in Florida between the Seminole Tribe and state officials.

After the Florida Supreme Court ruled that the governor exceeded his authority in negotiating (at long last) a compact with the Seminoles, the state has been stymied by how to enforce the court's decision. The governor negotiated table games with the tribe, and the court ruled that the games were beyond the governor's power to authorize.

The key to the stand-off is the revenue-sharing provision in the compact: if all the tribe may operate is slot machines (which are legal in a few Florida counties), then there likely is not sufficient "give" by the state to justify the revenue sharing -- a fact that the editorial recognizes, and brings to readers' attention.

For more background on the situation in Florida, see our earlier posts, or read more on today's topic here.

More on Supreme Court Arguments in Narragansett Case

For more on the historic Narragansett case, see these links:

AP coverage of the case.

Providence Journal article on which attorney actually argued the case.

The NYT McCain Article Has a Life of its Own

The New York Times' investigative report on Senator McCain's ties to the gambling industry has been getting international attention since its publication last Sunday. The story was picked up by media outlets across the U.S., as well as by UPI and news outlets in the U.K., France, the Netherlands, Canada, Romania, Spain, Mexico, Turkey, and India, to name a few. It also has been the subject of blogs. And as we've noted many times, the Indian gaming connection seems to capture public attention, so that Steve's quote is making the rounds as well.

Here's a sampling:

http://www.chicagotribune.com/news/nationworld/chi-campaign30sep30,0,6036479.story

http://www.huffingtonpost.com/mark-evitt/mccain-and-the-times-are_b_131252.html

http://www.boston.com/news/politics/politicalintelligence/2008/09/democrats_quest.html

http://www.slate.com/id/2201128/

http://harpers.org/archive/2008/09/hbc-90003629

And, on the more questionable side, there are posts like this one (and no, we don't know how the "at UND" got tacked onto the reference to "more than 70 interviews and thousands of pages of documents at UND" from the NYT story):

http://www.americanchronicle.com/articles/76234

Violence and Gaming in Riverside County

The New York Times reported on violence on the Soboba Band's reservation in southern California, fueled, according to the tribe, by the Riverside County Sheriff's Department. Since December 2007, five tribal members have been killed in shoot-outs with the Sheriff's Department. The Sheriff's Department claims that crime has risen dramatically on the reservation since 2006, when the tribe cancelled its contract with the Sheriff's Department to provide law enforcement.

The tribe has implemented a policy requiring Sheriff's deputies to check in and travel with an escort on the reservation. The Sheriff's Department has asked the NIGC to close the tribe's casino, arguing that there is imminent danger to casino patrons, employees, and nearby residents.

In the meantime, responding to complaints from groups like Stand Up for California, the governor's office is investigating whether the security restrictions or the increase in violent crime violate the tribal-state compact.

Riverside County Sheriff Stanley Sniff accused the tribe of having a "culture of violence" while tribal chair Robert Salgado charged that the Sheriff's Department was acting more like a 19th-century frontier cavalry.

Read more in the Times at Clash with Tribe Spurs Effort to Shut a Casino

Abramoff Sentenced to 4 Years in Prison

On Thursday, former lobbyist Jack Abramoff was sentenced to four years in prison for tax violations and corruption offenses.

Abramoff, you'll recall, bilked tribes of millions of dollars. He played one tribe off another, promising access to and influence over federal policymakers while charging exorbitant fees and chortling over how easy it was to dupe tribal officials. Of course, Abramoff's unethical and illegal acts extended well beyond his interactions with tribes. His relatively short sentence -- under the Federal Sentencing Guidelines, he could have received 11 years in prison -- was recommended by the prosecutor based on Abramoff's extensive cooperation in the investigation. In fact, the government recommended only 39 months, while tribal leaders from the Saginaw Chippewa in Michigan and the Coushatta Tribe of Louisiana urged the judge to issue a much harsher sentence.

Ironically, or perhaps fittingly, the man who called his tribal clients "monkeys," "troglodytes," "morons," and "the stupidest idiots in the land," begged the court for mercy, saying, "My name is the butt of a joke."

Read here in the New York Times.

We wrote an article on the implications of the Abramoff scandal on federal campaign finance law and tribal political participation in the Gaming Law Review. Find information on it here,
http://www.liebertonline.com/toc/glr/10/3, and as with anything else we’ve written, please feel free to contact us about the article.

Another Challenge to NIGC's Indian Lands Determination

In Iowa, the state Attorney General has filed suit in federal court to stop the Ponca Tribe of Nebraska from operating gaming in Carter Lake, IA.

Late last year, the NIGC had determined that the Carter Lake parcel, located near Council Bluffs, qualified as "restored lands" under IGRA's exceptions to the general prohibition against gaming on newly acquired lands. Iowa officials are relying in part on the fact that the NIGC reversed itself: in October 2007, it determined that the lands were not restored, but in December 2007, it reversed that decision. The state also is concerned about the impact on commercial gaming in Council Bluffs: according to Council Bluffs Mayor Tom Hanafan, tribal gaming is less desirable than state-sanctioned gaming that "all pay taxes."

That's a revenue-sharing alert, folks.

Complicating matters: The Secretary's new "Section 20" regulations that limit the reach of the restored lands exception.

Both NIGC decisions are available from the NIGC's web site, here. Read more at "Miller Files Lawsuit Over Gaming Legality."

Buffalo Creek Casino Case: Judge Skretny's Decision

On July 8, 2008, the federal district court issued a decision in the case challenging the NIGC's approval of the Seneca Nation's amended ordinance. The case, brought by Citizens Against Casino Gambling in Erie County, is an effort to prevent the tribe from operating a casino in Buffalo.

The plaintiffs claimed that the Buffalo parcel is not "Indian lands," so that Chairman Hogen's conclusion that the parcel meets IGRA's Indian lands requirement is arbitrary and capricious. After a lengthy analysis, Judge Skretny rejected this claim.

The plaintiffs also claimed that the Buffalo parcel did not qualify for the "settlement of a land claim" exception to IGRA's general prohibition against gaming on newly acquired lands, so that Chairman Hogen's conclusion on this point is arbitrary and capricious. On this one, the court sided with the plaintiffs. Recall that the Seneca Nation purchased the Buffalo parcel with funds from the federal Seneca Nation Settlement Act. The Interior Secretary had opined that land purchased with SNSA funds would fall within the "settlement of a land claim" exception.

The court, though, stated, "When the SNSA was enacted, the [Seneca Nation] did not possess an enforceable claim against the United States . . . . Because no claim existed, no claim was settled."

The court went on to hold that "gaming cannot lawfully occur on the Buffalo parcel under the settlement of a land claim exception," and vacated the NIGC's approval of the tribe's amended ordinance.

End of story, right? Wrong. In late July, federal lawyers asked the court to remand the issue to the NIGC. The argument is that while this case was pending, the Interior Department issued new regulations interpreting IGRA's exceptions to the prohibition against gaming on newly acquired lands (the section 2719 exceptions). These new regs take effect this month. And the next scheduled court date is August 21, when the Citizens Against Casino Gambling in Erie County are expected to ask the court to send federal marshals to shut down the Buffalo Creek Casino. Stay tuned.

Buffalo Creek Casino Case: The Challenges to the NIGC's Actions

As we explained last time, the NIGC twice approved the Seneca Nation's gaming ordinance in relation to the Buffalo Creek Casino.

First, in 2002, the NIGC approved an ordinance for gaming on unspecified lands. Then, in 2007, the NIGC approved an amended ordinance specifying the Buffalo parcel as the location for the casino. The 2007 approval expressly found that the parcel was "Indian lands," and qualified for the "settlement of a land claim" exception.

In the meantime, though, Citizens Against Casino Gambling in Erie County had filed federal suit. One of their challenges was to the NIGC's approval of the tribe's gaming ordinance. They claimed that the NIGC’s approval of the 2002 ordinance without making a determination that the lands in question (which, recall, were unspecified) were indeed Indian lands was arbitrary, capricious, an abuse of agency discretion, and contrary to law.

In 2007, right around the time the NIGC was reviewing the amended ordinance, the federal district court decided that in approving gaming ordinances, the NIGC was obligated to make an "Indian lands" determination: "[T]he NIGC is the gatekeeper for gaming on Indian lands and, when acting on a tribal gaming ordinance, it has a duty to make a threshold jurisdictional determination." The court further held that the NIGC's approval of the 2002 ordinance was therefore arbitrary and capricious, and vacated and remanded the agency’s approval.

Back to 2007 and the amended ordinance. In approving the amended ordinance, NIGC Chairman Hogen noted the court's decision regarding the 2002 ordinance, and stated, "Although we disagree with the Court's holding this site-specific ordinance moots the issues in that case."

Citizens Against Casino Gambling in Erie County disagreed, and filed another suit, which resulted in Judge Skretny's July 8, 2008 decision.

Whew! Up next: Judge Skretny's decision.

The Buffalo Creek Casino Case: The NIGC's Actions

When we left off on the Buffalo Creek controversy, we had reached the point where the Seneca Nation had purchased 9 acres of land in Buffalo in 2005. That was followed by a federal suit, filed by Citizens Against Casino Gambling in Erie County, to stop the tribe from opening a casino on the land. At issue was whether the land in question qualified as "Indian lands" under IGRA.

Back in 2002, when the Interior Secretary "pocket approved" the compact between the Seneca Nation and New York, Secretary Norton issued a letter explaining why she was neither disapproving nor affirmatively approving the compact. (Under IGRA, if the Secretary takes no action within 45 days, a compact is deemed approved.) In the letter, Norton stated that the land the tribe intended to purchase with the Seneca Nation Settlement Act (SNSA) funds would be "Indian lands" under IGRA. She also stated that the land would fall within the "settlement of a land claim" exception to IGRA's prohibition against gaming on lands acquired after 1988.

In 2002, the Seneca Nation passed a gaming ordinance that indicated the tribe's intent to conduct gaming on its lands. It did not specify a location, as the compact authorized the tribe to operate a casino in Buffalo "at a location to be determined." The ordinance was submitted to the NIGC Chair for approval, as required by IGRA. Chairman Hogen approved the ordinance, noting that approval was "for gaming only on Indian lands."

Once the land was purchased, the Seneca Nation passed an amended gaming ordinance that specifically identified the Buffalo parcel as the location for its casino. Chairman Phil Hogen approved the ordinance in 2007. Hogen's approval letter concluded, "Based on our review of the submitted ordinance, and taking into consideration the Department of the Interior's earlier decisions regarding the status of the Buffalo parcels, the parcels are Indian lands within the meaning of IGRA and they were acquired through the settlement of a land claim and thus are exempt from the general prohibition on gaming on land acquired after October 17, 1988."

In the meantime, though, the federal suit was pending . . . .

Up next: the challenges to the NIGC's actions.

Buffalo Creek Casino Case: The Story of the Buffalo Parcel

As everyone knows (right?), IGRA only authorizes Class II and III gaming on "Indian lands." For non-reservation land, the determination of whether a parcel of land is "Indian lands" can be very complicated, requiring careful analysis of a complex history of the tribe's interactions and agreements with the state and the federal government. In his July 8 decision, federal judge William Skretny conducted just that kind of analysis, reaching all the way back to the 17th century.

It's a long story that's difficult to make short, but here's the gist: In the 18th and 19th centuries, the Seneca Nation's land was sold and leased under a number of treaties, agreements, and statutes.

In the 1950s, the tribe filed claims against the U.S. for failing to ensure that the Seneca Nation received fair remuneration for its land. In 1969, the claims were still pending. One of the 19th century leases, however, was due to expire, and the New York state legislature set about renegotiating the lease with the tribe. An agreement was reached, and Congress codified it in the Seneca Nation Settlement Act of 1990. The Act included a provision requiring the U.S. to pay the tribe $35 million for past inequities. $5 million was earmarked for the tribe's economic and community development.

Then, in 2002, the Seneca Nation entered into a Class III compact with New York. The compact authorized gaming at three different sites, including on a to-be-purchased parcel of land in Buffalo. The tribe intended to use some of the funds from the 1990 Settlement Act to purchase the land. The compact was "pocket-approved" by the Interior Secretary.

In 2005, the tribe purchased 9 acres of land in Buffalo. A few months later, a citizens group, Citizens Against Casino Gambling in Erie County, filed suit in federal court to prevent the tribe from conducting gaming on the parcel.

Next up: The NIGC's actions

No Surprise from Florida

Earlier this month, the Florida Supreme Court held that the Class III compact negotiated between Gov. Crist and the Seminoles violated state law. As Kathryn has detailed in her 2007 Marquette Law Review article, state constitutional challenges to gaming compacts are not unusual, often arising when the state legislature (or some state legislators) are unhappy with the compact negotiated by the governor. The Florida case is similar to cases in Wisconsin, New York, and Michigan. In Florida, the state legislature sued Gov. Crist, arguing that the compact was invalid without legislative approval. As is typical in these cases, the Seminoles were not party to the suit (Kathryn's article discusses how and why this is problematic). And as is also typical in these cases, the court's decision turns entirely on state law. (Ditto.)

The court concluded that because the compact authorized banked card games, which are illegal in Florida, the governor exceeded his constitutional authority: "The Governor has no authority to change or amend state law. Such power falls exclusively to the Legislature. Therefore, we hold that the Governor lacked authority to bind the State to a compact that violates Florida law as this compact does."

The court's decision is available through the Florida Supreme Court web site. (By the way, Kathryn's Marquette Law Review article is cited by the Florida Supreme Court in its decision.)
http://www.floridasupremecourt.org/decisions/index.shtml

Next up: The Fallout from the Florida Decision

Per Capita Payments and Tribal Membership

The San Pasqual Band of Mission Indians withheld per capita gaming payments from about 50 members and also fired several members from casino and other leadership positions. The issue centers on the validity of their status as tribal members. The Band requires "blood quantum" for tribal membership. Each member must, at the least, have a great-grandparent who was a "full-blooded" member of the tribe. The dispute over the 50 members arose from questions about whether the relative from whom they were descended was adopted, rather than being a "blood" member of the tribe.

The San Pasqual Band is a relatively small tribe of about 300 members, and it issues monthly checks of about $4,000 to each of its members under its per capita payment plan. IGRA permits a tribe to make per capita distributions of net gaming revenue to its members if the uses mandated in section 2710(b)(2)(B) (these include funding tribal government operations, providing for the welfare of tribal members, promoting tribal economic development, making charitable donations, and assisting in funding local government operations) are adequately met and the tribe's distribution plan is approved by the Interior Secretary. Because per capita payments are limited to tribal members, the membership determinations of some tribes come under scrutiny. Generally speaking, of course, tribal sovereignty encompasses a tribe's exclusive right to make membership determinations. Accordingly, federal courts have been reluctant to review a tribe's distribution of such payments. At least one court, however, has made a distinction between reviewing a tribe's membership determinations and reviewing a tribe's compliance with its per capita payment plan. (See Smith v. Babbitt, 875 F. Supp. 1353 (D. Minn. 1995), aff'd, 100 F. 3d 556 (8th Cir. 1996).)

Interestingly, though, the local BIA superintendent said that the San Pasqual Band's membership determinations must be approved by the BIA. The BIA superintendent reported the withheld checks to the NIGC as a potential violation of the Band's per capita payment plan, explaining that the disputed members are "members until such time as the BIA changes its mind."

Read more here in Onell Soto’s article in the San Diego Union Tribune.

NIGC Reports Successful Government-to-Government Consultations—However One Defines “Success”

During last week's Great Plains/Midwest Indian Gaming Conference and Trade Show at the Shakopee Mdewakanton Sioux Community's Mystic Lake Casino Hotel near Minneapolis-St. Paul, the National Indian Gaming Commission conducted government-to-government consultations with tribal leaders from the region. According to NIGC Chair Phil Hogen, the consultations allowed "ample time" for tribal delegations to discuss "anything on their minds."

The NIGC has drawn criticism for its tribal consultation practices, with some tribal leaders complaining that the consultation is pro forma -- that is, that the Commission conducts consultation sessions, but tribal input has little if any effect on the NIGC's actions. Recently, criticism directed at the NIGC was the subject of an April 17th U.S. Senate Indian Affairs Committee oversight hearing at which we testified.

Can the NIGC ever overcome criticism of its actions? Like any regulated industry, Indian gaming has numerous stakeholders, and we all know the old saying about pleasing everybody, all the time….

Read more about the Conference and Trade Show here.

Read our testimony at the April 17th Senate Indian Affairs Committee Hearing here.

The Battle Over Bingo in California

There’s a battle brewing in California over an attempt to expand charitable bingo in that state. A state bill that would increase prize limits beyond $250 is backed by the Catholic Church and various charities and nonprofits.

But the bill, SB 1238, along with another bill (SB 1626) set for a state senate hearing next week that would authorize electronic bingo machines for charities, has run into significant opposition from gaming tribes. Gaming tribes assert that bingo machines are illegal under state law, and also, that electronic bingo machines would violate tribes’ exclusive right to operate electronic games, as codified in tribal-state compacts.

Bingo battles aren’t just in palaces anymore.

For more in the San Diego Union-Tribune, click here.

Interior Disapproves Catskills Casino Plans

Some of you may have heard that the Interior Department recently issued a letter rejecting the St. Regis Mohawk Tribe's (NY) plan for an off-reservation casino in the Catskills. The letter, issued by Interior Associate Deputy Secretary James Cason, stated,

"The remote location of the proposed gaming facility may encourage reservation residents to leave the reservation for an extended period to take advantage of the job opportunities created. . . . The potential departure of a significant number of reservation residents and their families could have serious and far-reaching implications for the remaining tribal community and its continuity as a community."

The rationale reflects the current Secretary's stance on so-called "far flung" lands—which has raised both procedural and substantive questions about the extent of the agency’s authority—but nevertheless is surprising given that the support of Governor Spitzer for a tribal casino in the Catskills.

Read more at "US Officials Reject Catskill Casino Plans."

Report from BingoWorld (sounds intriguing, no?)

We've just returned from BingoWorld Conference and Expo , hosted by BNP Media Gaming Group at the South Point Casino in Las Vegas. We spoke on a panel titled, "Class II Bingo: The Battle for the Bright Line," along with National Indian Gaming Commission (NIGC) Chair Phil Hogen and Quapaw Tribe Vice Chair J.R. Mathews.

Chairman Hogen set out the history of the NIGC's proposed regulations, meant to clarify the distinction between Class II bingo machines and Class III slot machines. Vice Chairman Mathews spoke eloquently on the impact on tribes, particularly in Class II states like Oklahoma.

For our part, we detailed the legal background and legal issues raised by the proposed regulations, as well the political impetus and policy implications of the proposed regulations. (More to come on our comments.) The comment period is fast drawing to a close on March 9, though Chairman Hogen seemed to suggest that it could once again be extended.

For more on the proposed regulations, click here.

More on "Bingo Slots"

In our last post, we talked about the impact of the National Indian Gaming Commission's proposed Class II regulations on the debate over casino gaming in Massachusetts. The Mashpee Wampanoag, though, isn't the only tribe impacted by the proposed regulations.

A handful of states are "Class II only" states, meaning that because state law doesn't allow casino-style gaming, tribes can't operate Class III or casino-style games. That's because IGRA only allows tribes to operate Class II or Class III gaming if the state allows "such gaming." In those states, tribal gaming is limited to Class II games. It's easy to imagine the role of Class II machines, or so-called "bingo slots", in achieving IGRA's goals in those states. Just picture a bingo hall and a casino -- with a few exceptions driven by market, there's no question that casino-style gambling is more lucrative. And, since one of the common criticisms of Indian gaming is that some tribes are still facing extreme poverty and unemployment, Class II machines can help to equalize Indian gaming's positive effects across tribes.

The economic impact study concerning the proposed regulations, commissioned by the NIGC, found the rules would have "a significant negative impact" on Class II gaming revenue, and therefore on the tribes that operate such games. The study concluded that the proposed changes would reduce gaming revenue by $142.7 million, with an accompanying loss of $9.6 million in non-gaming revenue and a $17.4 million reduction in tribal government revenue. The NIGC report is Alan Meister, The Potential Economic Impact of Proposed Changes to Class II Gaming Regulations, Report Submitted to the National Indian Gaming Commission (November 3, 2006).

But there's more at stake than money. Under IGRA, tribes are entitled to operate Class II games, including those played on machines, without state interference. We've argued elsewhere that any changes to how machines are classified should be grounded in IGRA's policy goals -- in other words, it isn't enough to say "But they look like slots!" The NIGC's proposed regulations will impact tribal sovereignty by changing what machines tribes are entitled to operate free of state control, and by impairing -- in some cases, drastically -- tribes' ability to negotiate compacts on a level playing field. And in Class II only states, the regulations may intensify the uneven positive impacts of Indian gaming across the country.

Read more:

NIGC's Proposed Classification Standards for Class II games, Definitions for Electronic or Electromechanical Facsimile, Technical Standards for Class II games and Minimum Internal Control Standards (MICS) for Class II games. Click here.

The Indian Gaming Debate in Massachusetts

If you're interested in following the complex debate over Indian gaming in Massachusetts, here are some useful links:

"The State's Big Bet: Is Gambling Good for Massachusetts?" This page, on CapeCodTimes.com, provides links to a three-part series on casino gambling, covering economic and social impacts and the state's political climate, as well as links to recent articles.

Boston Magazine's coverage of the casino debate in Massachusetts: "The Smart Money on Casinos" and "The Gambling Man."

Social Law Library links related to casino gaming in Massachusetts.

Breaking News: Interior Disapproves Catskills Casino Plans

Late Friday, the Department of Interior issued a letter rejecting the St. Regis Mohawk Tribe's plan for an off-reservation casino in the Catskills.

The letter, issued by Interior Associate Deputy Secretary James Cason, stated, "The remote location of the proposed gaming facility may encourage reservation residents to leave the reservation for an extended period to take advantage of the job opportunities created. . . . The potential departure of a significant number of reservation residents and their families could have serious and far-reaching implications for the remaining tribal community and its continuity as a community."

This reflects the current Secretary's stance on so-called "far flung" lands, but nevertheless is surprising given that the support of Governor Spitzer for a tribal casino in the Catskills.

Read more by clicking here.

“No Sioux Logo? No Sioux Casinos!” Shirt Sent Wrong Message

As some of you may know, the University of North Dakota (where we work) has as its athletic nickname the “Fighting Sioux.” This nickname, along with an accompanying “Indian-head” logo, have been the object of considerable contention, most recently culminating in a UND lawsuit against the NCAA for its finding that UND’s nickname and logo created a “hostile and abusive” atmosphere on campus. The federal suit was recently settled, giving the university a three-year window to seek permission from two “Sioux” tribes in the state to retain the nickname and logo.

Last week, the Grand Forks (ND) Herald reported on a T-shirt being sold by a company in Jamestown, N.D.

The shirt, which read, “No Sioux Logo? No Sioux Casinos!,” was critical not only of the settlement reached in the lawsuit between UND and the NCAA, but also of Indian gaming in North Dakota. As the shirt's creator said, “[American Indians] put their name all over a casino, which I think is addictive and destructive.”

Although people certainly are entitled to their opinions on whether casino gambling is good or bad, we think the T-shirt - which no longer is being sold, the Jamestown company announced Wednesday - was a powerful symbol of some all-too-common misunderstandings about Indian gaming.

Without specifically weighing in on the merits of the UND nickname and logo debate or lawsuit settlement, we wrote an op-ed which appeared in the December 10 issue of the Herald to provide perspective rooted in our research on the law and policy of Indian gaming.

Click here for our op-ed.